Easement

Easements are legal rights which one property enjoys over another. Common examples are rights of way, rights of drainage, and rights of light.

The important feature of easements is that they are continuing legal rights which form part of the legal title of the property they benefit, not just personal rights. They will pass with the property on a transfer of the title, even if they are not specifically mentioned in the transfer deed.

Land which is affected (or ‘burdened’) by an easement will also continue to be bound when it is sold. So for example if I grant my neighbour a right of way over my land, and then sell that land, the buyer will purchase subject to the neighbour’s right of way.

Identification of Easements during the Conveyancing Process

Your Conveyancing Solicitor should inform you of any easements which affect a property you are buying. However this is often not so easy, as they are not always fully recorded in property titles at the land registry. Although easements are often created by legal documents, they can also come into existence by long use; the Courts may also decide that an earlier deed omitted a necessary right and will therefore ‘imply’ it.

If an easement is not recorded in a registered title, either as benefiting or adversely affecting a property, that does not mean that it does not exist and cannot be legally enforced. The land registry previously adopted much stricter rules for the registration of easements, but although this has now changed there will be many existing easements that have not been registered.  

Easements are often created when land is sold; for instance the transfer of a new house will often grant easements such as a right of way over private roads, and the right to use drains and other services laid in adjoining land.

Easements are private rights, as opposed to public rights such as the right to use a public highway or footpath. They benefit whoever owns the relevant property as well as well as any lawful occupiers, such as the owner’s family or tenants.

Termination of an Easement

Once an easement has been created it cannot strictly be terminated except by deed. Cases often arise when an easement has apparently been abandoned, e.g. a right of way which has not been used for many years. However the Courts have been reluctant to agree in such cases that the easement no longer exists.

The law relating to easements is very complicated, and they often give rise to disputes. Solicitors will be able to give necessary advice in most cases, but sometimes further specialist advice is required.  

Leases often contain rights which are akin to easements, and will continue to benefit the property during the term of the lease. Such rights are generally considered under the law relating to landlord and tenant. However if a property has the benefit of an easement over adjoining land then a lease of it can include such rights.